If the two parties cannot reach an agreement, or the employer refuses to attend the conciliation meeting, the commissioner will issue a certificate stating that the matter has not been resolved. The certificate will be sent to both parties by the commissioner’s office. Either party can then refer the matter for arbitration to the CCMA or adjudication at the Labour Court, depending on the nature of the dispute.

Disputes over these matters are referred to the CCMA or Bargaining Council for arbitration:

• Unfair labour practices that do not involve discrimination
• Dismissals for acts of misconduct (the employer says the employee did something wrong)
• Dismissals for incapacity (the employer says the employee can’t do the work properly)
• Severance pay
• Disputes concerning organisational rights for a trade union
• Alleged unfair retrenchment where the retrenchment involved an individual employee.
• Breach of a collective agreement
• Disputes over the granting of organisational rights

Disputes over these matters are referred to the Labour Court for adjudication:

• Disputes that involve discrimination
• Retrenchments
• Automatically unfair dismissals (See: Automatically Unfair Dismissals)

If the parties believe that it is going to be too expensive to take the matter to the Labour Court, they can agree to have the matter arbitrated by the CCMA or Bargaining Council, even if the matter falls within the jurisdiction of the Labour Court.